Constituent Power and this Summer of Rage

There has been much discussion and fear-mongering about this expected summer of rage. The idea is put forward by the media and political classes that we must expect the worst. However, in the light of the recent resurgence of the left and the countervailing ideology perpetuated by mainstream politics and the media, it is worthwhile to consider what we might call the boundaries of democracy. I don’t mean this in the straight-forward manner which is often discussed today. Raising this question usually demands that we conjure up the ‘exceptional’ threats that ‘democracy’ (read Western capitalist democracies) project in order to establish their precariousness. Once this precariousness is established then those measures to ‘defend the state’ are both facilitated and legitimated. We find these boundaries of democracy mapped out in a myriad of political, legal and disciplinary manners: The limits of the concept of ‘refugee’; the policing of the European border; the projection of the terrorist, envoirmentalist or anarchist other. Equally the limits of democracy are mapped out in the domestic and European courts on issues of free speech, freedom of association, labour rights and beyond. However, the questioning of the boundaries or limits of democracy that I propose is neither a question of when the constituted order is entitled to silence its opponents, nor where the democratic state is entitled to declare war upon its internal or external ‘enemies’. Instead of these direct questions on the nature and extent of the current liberal, democratic and capitalist state, I would prefer to ask the question what are the limits of democracy in a meta-political sense. At the heart of every democratic constitutional order lies the paradox of authority, this paradox is constitutive of the democratic State or the democratic order.

As a constituted order, representative democracy demands that political action and speech must fall within settled lines and channels. There are processes to be followed, authorizations to be obtained, clearance to be received from the offices of the state, the police, the local authority, etc. Settled channels of speech also exist: No one must incite, propose or undertake violence; The suggestion of extreme anger or hatred against a certain grouping, even bankers and politicians, is prohibited. Ultimately, we are told that change within a democracy must come from the authorized channels. Either the populace will manage to leverage enough pressure upon their ‘representatives’ or the option is open to any nascent political organisation or individual to stand for election, even to enter government. Thus, democracy provides both the means of change and the boundaries within which this change is organised and legitimated. However, it is here with these channels or boundaries of the legitimate action and speech that we find the paradox of the liberal democratic form itself. It lies precisely in the notion of a ‘democratic order’.

The paradox of this order is of course that it relies for its legitimacy upon a fundamentally disordered event: the people. Elections are understood as the political class being determined by the people. Yet we know in our every fibre that this is not the ‘voice of the people’. In the most banal of senses, when a politician or political party gets 50% of the vote, this is usually 50% of 50% (i.e. 25%) of the voting population. The true purpose of elections is shown most beautifully by Jose Saramago’s novel Seeing. There, for no apparent reason, an unknown city casts blank ballots. The reaction of the government is to treat the city as contagious, to seal it off, to oppress and attempt to destroy this terrible event. Elections are the stuff of public Right, they are the event upon which the system bases its legitimacy. Without elections, even the mirage of the sovereignty of the people cannot be maintained.

The premise of elections is popular sovereignty. This is rooted (historically or mythologically) in an original event where public Right is seized by the people. This is the moment where the democratic state is formed. In constitutional scholarship the term used for this event, this siezure of sovereignty, is constituent power. Constituent power is the power to create and determine political relations on a macro-level. The term was first coined by the Abbé Sieyes in the run up to the French revolution. Sieyes saw that constituent power belonged the nation. Because it undertook all of the economic and social functions within France, it should also control the state. Along with Rousseau and all the other thinkers of that revolutionary age, Sieyes argued for a sovereign people. This is the fundament of democracy: power to the people. Some may object that only a very few states have had a revolutionary event which established the people at the heart of the state. Britain’s revolution and early republic was overturned, and in its place came a gradual alteration of the status quo. However, this misses the point that once democracy is placed at the heart of the state, once the people is the basis of legitimacy, the revolutionary event is posed as an ever present possibility. This is demanded by the term itself: democracy. The right to revolution lies at the heart of democracy. Milton frames it well: “since the King or Magistrate holds his authoritie of the people, both originally and naturally for their good in the first place, and not his own, then may the people as oft as they shall judge it for the best, either choose him or reject him, retaine him or depose him though no Tyrant, meerly by the liberty or right of free born Men, to be govern’d as seems to them best.” The people may overthrow their leaders if they become tyrants. Thus, as Derrida saw, revolution is a spectre which haunts democracy. Revolution is the eternal possibility of democracy.

Thus, by bringing ‘democratic’ and ‘order’ together, we reach the paradox. The democratic order demands that revolution is the ultimate right of the people, but at the same time when viewed from the order which it seeks to overthrow, revolution is always illegitimate. The constitution of this democratic order, as a system of legitimacy, lies on a foundation (the revolution) whose legitimacy it cannot account for. The original founding moment of the constitutional order is alien to that order itself. Thus, the paradox is that at the heart of the law there lies a moment which is not just non-legal but resistant to the very stuff of legality. This ‘paradox of constitutionalism’ replicates itself throughout the legal order: on one side the continuing possibility of the constituent and on the other constituted state power; on one side the political (understood as broader than mere politics) and on the other law; on one side the question of change, treason and creativity and on the other the question of constituted power, authority and calcification.

In a crucial recent intervention entitled On Democracy, Jean-Luc Nancy drew our attention once more to what Georges Bataille called the ‘headlessness’ of democracy. He points out that democracy is not a demo-archy, it does not propose an origin (arche) which it would need to be faithful to. Rather at its heart lies the cracy (force or power) of the demos. ‘‘Democracy’ is formed by a suffix that refers to force, to violent imposition, unlike the suffix -archy which refers to founded power, legitimated in a principle.’ Thus, he tells us that at the heart of democracy lies an an-archy, a lack of origin or an anti-origin. Democracy is the maintenance of the paradox of a foundation of foundationlessness. The people is the site of this lack, this an-archy. Nancy tells us that the people do not make a principle upon which the system can be founded. In fact, ‘democracy as politics, not being able to be founded on a transcendent principle [arche], is necessarily founded, or unfounded, on the absence of human nature.’ The people can never be a unity, or at least this unity would rely upon some sort of projection along the lines of Ernesto Laclau’s populism. The people is never present to itself, it can never be like a single unified willing agent.

To explicate this difficult position, let us briefly look back to Bataille’s analysis of democracy. He placed the Place de la Revolution/Concorde in Paris at the heart of his imagination of sovereignty, community and politics. It was there that the French revolutionaries executed the king, who, in all his majesty, authority and power was sacrificed for the founding of the new political community. This is the very essence of the revolution for Bataille. ‘As a result of the revolution, divine authority ceases to found power: authority no longer belongs to God but to the time whose free exuberance puts kings to death, to the time incarnated today in the explosive tumult of the people.’ The traditional analysis of what happens in the French revolution simply transposes the people into the sovereign position of the king. However, Bataille rejected this simplistic view, because by undertaking this transposition, nothing actually changes. In reality, the people is not like the king. To put the people at the heart of sovereignty is to alter the very nature of sovereignty itself. Bataille saw that the symbolic act of cutting the king’s head off was far more radical than we now understand. The old Hobbesean image of the king as the head of the body politic is operative. When the head of the king is cut off, the people lose the one figure capable of uniting them (in subjection). With that, democracy becomes headless. The principle of popular sovereignty establishes itself with the refusal of the absolute and transcendent truth of subjection under the monarch.

What then does this mean for us as we face into this summer of rage? Firstly, we must not forget that at the heart of democracy lies disorder not order. The constituent power of the people cannot be exhausted by periodic elections. It is within the power of the people to alter the nature of the meta-political relations at any given moment. When the press warn us that anarchists and environmentalists are going to cause damage and do violence in this summer of rage, we must remember that it is not as simple as ‘good and evil’ transposed onto ‘order and disorder’ because at the heart of democracy lies violence and disorder. To reject this out of hand is to reject ‘democracy’ and side instead with ‘order’. The channelling of popular will into accepted modes of expression is all too often a pacification of popular sentiment. Constituent power cannot be bound by any transcendent ordering.

Secondly, constituent power is ever present. But it is a very different type of power to that which is exercised by the state. The state has the monopoly on the use of force. As the old Marxist critique goes, when a policeman beats someone with a truncheon that it reasonable force, when a worker strikes back with a fist, a stick or a stone that is unacceptable violence. The state utilises force/violence on an everyday basis whether it is stop and search powers, incarceration or riot police with tear gas. This is the power of the state. The people on the other hand holds a very different form of power. In romance languages the distinction is drawn between these two types of power: in Latin potentia andpotestas; in French puissance and pouvoir; in Italian potenza and potere; in Spanish potentia and poder. The power held by the state is apotestas, that is a power over others, ordering, dominion or rule. It is the power to exercise its violence as it sees fit. Potentia on the other hand is better understood in the sense of capability, possibility or potentiality. It is the power or possibility to create, to make or to do. Constituent power is precisely this power to create new forms of political relation. It is this form of power which lies at the heart of democracy. When the newspapers attack the protestors this week, when they say that they are disorganised, violent and anti-social. When they attack them for not having an alternative and also for thinking only of violence and disorder, it is necessary to remember that this is precisely the critique levelled at the revolutionaries in France, Haitii or America. The constituent must always be illegitimate from the subject position of the order which it rejects. Without dealing here with any of the possible projections of a future world, we can say that democracy must retain this sense of the constituent. It is the system which is radically opened to its becoming otherwise. Democracy without the possibility of the return of the constituent is not democracy. As far as the protestors go: Nancy tells us that ‘Invention is always without model and without warranty. But indeed that implies facing up to turmoil, anxiety, even disarray. Where certainties come apart, there too gathers the strength that no certainty can match.’

This does not mean that in a liberal move we should simply tolerate the protestors as a necessary evil. Rather it means that we must think, and think again. We must think again about our disciplinary system; we must think again about surveillance; about the safety net provided for banks; about the aggressive international wars; about the maintenance of an international economic system which places and maintains the west above the rest; we must think about debt, famine and all of the inequities and injustices of the world. And when we do, we may perhaps join the forces of the constituent and be angry at the way things are. At the end of a beautiful short film, Ken Loach has his protagonist say: ‘Saint Augustine said Hope had two beautiful daughters, Anger and Courage. Anger at the way things are and Courage to change them.’

To finish then, the recent crisis has woken us as though from a dream. The structures and systems which appeared natural and immutable are a mirage. There is no end of history where liberal, capitalistic democracy is established in perpetuity. The world is falling apart and given the current injustices, perhaps that is not such a bad thing. It is in these times of crisis that the new emerges. It is now that the world is remade. This is what is at stake with the G20. Who are we to say that the people should not also have its say. Their anger at the tyranny of liberal capitalism should not be rejected as nihilism or nonsense. The anger of the people is what makes democracy. Their cracy is the potentia to make the world. A summer of rage? Nancy again: “Anger is the political sentiment par excellence. It brings out the qualities of the inadmissible, the intolerable. It is a refusal and a resistance that with one step goes beyond all that can be accomplished reasonably in order to open possible paths for a new negotiation of the reasonable but also paths of an uncompromising vigilance. Without anger, politics is accommodation and trade in influence; writing without anger traffics in the seductions of writing.”